Ordinance
No. 2003-105
An
ordinance granting to Northern States Power Company, A Minnesota Corporation,
d/b/a xcel energy its successors and assigns, permission to ERECT A GAS
DISTRIBUTION SYSTEM FOR THE PURPOSES OF constructING, operatING, repairING
and maintainING in the City of GRANT, Minnesota, THE NECESSARY GAS PIPES,
MAINS and appurtenances FOR THE TRANSMISSION OR DISTRIBUTION OF GAS to
the City AND its inhabitants and others and TRANSMITTING GAS INTO AND THROUGH
THE CITY AND to use the public ways and public grounds of the city for
such purposes.
The
City Council of the City oF
Section
1.Definitions.
For
purposes of this Ordinance, the following capitalized terms listed in alphabetical
order shall have the following meanings:
City.The
City of
City
Utility System.Facilities
used for providing non-energy related public utility service owned or operated
by City or agency thereof, including sewer and water service, but excluding
facilities for providing heating, lighting or other forms of energy.
Commission.The
Minnesota Public Utilities Commission, or any successor agency or agencies,
including an agency of the federal government which preempts all or part
of the authority to regulate Gas retail rates now vested in the Minnesota
Public Utilities Commission.
Company.Northern
States Power Company, a
Gas."Gas"
as used herein shall be held to include natural gas, manufactured gas,
or other form of gaseous energy.
Gas
Facilities.Pipes, mains, regulators,
and other facilities owned or operated by Company for the purpose of providing
gas service for public use.
Notice.A
written notice served by one party on the other party referencing one or
more provisions of this Ordinance.Notice
to Company shall be mailed to the General Counsel,
Public
Ground.Land owned by the City
for park, open space or similar purpose, which is held for use in common
by the public.
Public
Way.Any street, alley, walkway
or other public right-of-way within the City.
Section
2.adoption of Franchise.
2.1Grant
of Franchise.City hereby grants
Company, for a period of 20 years from the date passed and approved by
the City, the right to transmit and furnish Gas energy for light, heat,
power and other purposes for public and private use within and through
the limits of the City as its boundaries now exist or as they may be extended
in the future.For these purposes,
Company may construct, operate, repair and maintain Gas Facilities in,
on, over, under and across the
2.2Effective
Date; Written Acceptance.This
franchise agreement shall be in force and effect from and after passage
of this Ordinance, its acceptance by Company, and its publication as required
by law.The City by Council resolution
may revoke this franchise agreement if Company does not file a written
acceptance with the City within 90 days after publication.
2.3Service
and Rates.The
service to be provided and the rates to be charged by Company
for
Gas service in City are subject to the jurisdiction of the Commission.
2.4Publication
Expense.The expense of publication
of this Ordinance will be paid by City and reimbursed to City by Company.
2.5Dispute
Resolution.If either party asserts
that the other party is in default in the performance of any obligation
hereunder, the complaining party shall notify the other party of the default
and the desired remedy.The notification
shall be written.Representatives
of the parties must promptly meet and attempt in good faith to negotiate
a resolution of the dispute.If the
dispute is not resolved within 30 days of the written notice, the parties
may jointly select a mediator to facilitate further discussion.The
parties will equally share the fees and expenses of this mediator.If
a mediator is not used or if the parties are unable to resolve the dispute
within 30 days after first meeting with the selected mediator, either party
may commence an action in District Court to interpret and enforce this
franchise or for such other relief as may be permitted by law or equity
for breach of contract, or either party may take any other action permitted
by law.
Section
3.Location, Other Regulations.
3.1Location
of Facilities.Gas Facilities
shall be located, constructed and maintained so as not to interfere with
the safety and convenience of ordinary travel along and over
3.2Field
Locations.Company shall provide
field locations for its underground Gas Facilities within City consistent
with the requirements of Minnesota Statutes, Chapter 216D.
3.3Street
Openings.Company shall not open
or disturb any
3.4Restoration.After
undertaking any work requiring the opening of any
3.5Avoid
Damage to Gas Facilities.Nothing
in this Ordinance relieves any person from liability arising out of the
failure to exercise reasonable care to avoid damaging Gas Facilities while
performing any activity.
3.6Notice
of Improvements.The City must
give Company reasonable notice of plans for improvements to
Section
4.Relocations.
4.1Relocation
of Gas Facilities in
4.2Relocation
of Gas Facilities in Public Ground.City
may require Company at Company's expense to relocate or remove its Gas
Facilities from Public Ground upon a finding by City that the Gas Facilities
have become or will become a substantial impairment to the existing or
proposed public use of the Public Ground.
4.3Projects
with Federal Funding.Relocation,
removal, or rearrangement of any Company Gas Facilities made necessary
because of the extension into or through City of a federally?aided highway
project shall be governed by the provisions of Minnesota Statutes, Section
161.46, as supplemented or amended.It
is understood that the right herein granted to Company is a valuable right.City
shall not order Company to remove or relocate its Gas Facilities when a
Public Way is vacated, improved or realigned because of a renewal or a
redevelopment plan which is financially subsidized in whole or in part
by the Federal Government or any agency thereof, unless the reasonable
non-betterment Costs of such relocation and the loss and expense resulting
therefrom are first paid to Company, but the City need not pay those portions
of such for which reimbursement to it is not available.
4.4No
Waiver.The provisions of this
franchise apply only to facilities constructed in reliance on a franchise
from the City and shall not be construed to waive or modify any rights
obtained by Company for installations within a Company right-of-way acquired
by easement or prescriptive right before the applicable Public Way or Public
Ground was established, or Company's rights under state or county permit.
Section
5.Tree Trimming.
Company
is also granted the permission and authority to trim all shrubs and trees,
including roots, in the Public Ways of City to the extent Company finds
necessary to avoid interference with the proper construction, operation,
repair and maintenance of Gas Facilities, provided that Company shall save
City harmless from any liability in the premises.
Section
6.Indemnification.
6.1Indemnity
of City.Company shall indemnify,
keep and hold the City free and harmless from any and all liability on
account of injury to persons or damage to property occasioned by the construction,
maintenance, repair, inspection, the issuance of permits, or the operation
of the Gas Facilities located in the
6.2Defense
of City.In the event a suit
is brought against the City under circumstances where this agreement to
indemnify applies, Company at its sole cost and expense shall defend the
City in such suit if written notice thereof is promptly given to Company
within a period wherein Company is not prejudiced by lack of such notice.If
Company is required to indemnify and defend, it will thereafter have control
of such litigation, but Company may not settle such litigation without
the consent of the City, which consent shall not be unreasonably withheld.This
section is not, as to third parties, a waiver of any defense or immunity
otherwise available to the City; and Company, in defending any action on
behalf of the City shall be entitled to assert in any action every defense
or immunity that the City could assert in its own behalf.
Section
7.Vacation of
The
City shall give Company at least two weeks prior written notice of a proposed
vacation of a
Section
8.Change In Form of Government.
Any
change in the form of government of the City shall not affect the validity
of this Ordinance.Any governmental
unit succeeding the City shall, without the consent of Company, succeed
to all of the rights and obligations of the City provided in this Ordinance.
SECTION
9.FRANCHISE FEE.
The
City at the time of adopting this franchise agreement does not desire to
require that Company collect a franchise fee from its gas customers in
the City and the Company has agreed, at the City's request, to collect
a franchise fee from its customers under the electric franchise agreement.The
City and Company agreed that the Company's cost to purchase gas from wholesale
gas suppliers, which cost is immediately included in its bills to customers,
was an uncertainty that made a gas franchise fee unattractive. At a future
date during the term of this franchise agreement, the City may determine
that it desires Company to collect a gas franchise fee.If
so, the City may give Company Notice to amend this franchise agreement
to authorize collection of a franchise fee by separate ordinance in an
amount and upon such terms and conditions as can be mutually agreed upon,
taking into account that the Company's customers are already paying an
electric franchise fee. Upon receipt of such Notice, Company shall negotiate
in good faith with City to amend this franchise agreement to allow collection
of a franchise fee by separate ordinance in an amount that is designed
so as to not fluctuate with the cost of purchased gas.
Section
10.provisions of ordinance.
10.1Severability.Every
section, provision, or part of this Ordinance is declared separate from
every other section, provision, or part; and if any section, provision,
or part shall be held invalid, it shall not affect any other section, provision,
or part.Where a provision of any
other City ordinance conflicts with the provisions of this Ordinance, the
provisions of this Ordinance shall prevail.
10.2Limitation on Applicability.This Ordinance constitutes a franchise agreement between the City and Company as the only parties and no provision of this franchise shall in any way inure to the benefit of any third person (including the public at large) so as to constitute any such person as a third party beneficiary of the agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any person not a party hereto.
Section
11.Amendment PROCEDURE.
Either
party to this franchise agreement may at any time propose that the agreement
be amended to address a subject of concern and the other party will consider
whether it agrees that the amendment is mutually appropriate.If
an amendment is agreed upon, this Ordinance may be amended at any
time by the City passing a subsequent ordinance declaring the provisions
of the amendment, which amendatory ordinance shall become effective upon
the filing of Company's written consent thereto with the City Clerk within
90 days after the date of final passage by the City of the amendatory ordinance.
Section
12.PREVIOUS FRANCHISES SUPERSEDED.
This
franchise supersedes any previous Gas franchise granted to Company or its
predecessor.
Upon roll call, voting AYE: Council members _______________________________________
_____________________________________________.
Voting NAY: __________.
Whereupon said Ordinance was declared passed and adopted this ____ day of December, 2003.
____________________________
Thomas Carr, Mayor
ATTEST:
Barbara Bartholdi, City Clerk
Published in the White Bear Press on the ______ day of December, 2003.
Published
in the Stillwater Gazette on the ______ day of December, 2003.